As the summer holiday period fast approaches, the news that another volcanic eruption is disrupting flights in and out of the UK may cause some employers to feel a sense of déjà vu after the similar events of last year. To prepare for the "My plane has been cancelled!" phone call from an absent employee, here are our top five FAQs for this potentially problematic employment situation: -
1. Are employees entitled to pay if they are unable to get to work because of the volcanic ash?
Generally speaking, employees have no legal right to be paid when they are unable to attend work because of a travel delay; it is the employee's responsibility to get to work.
Employers should check employment contracts and collective agreements to see if any specific provision is made for such circumstances, and should also be mindful of any custom and/or practice that has been created by previous decisions in similar situations. Consistency of approach is extremely important to minimise the chances of employees complaining of more generous treatment in the past.
Even although, strictly speaking, employees have no legal entitlement to be paid where they can't get back from abroad to attend work, employers may wish to consider the advantages of making payments as a gesture of goodwill, particularly the impact such a decision might have on staff morale. Alternatives to unpaid leave could also be considered, such as employees making up time once they return to work or using up any remaining annual leave entitlement.
2. Can employees be made to extend their holiday if they are unable to return?
Unless there is an express term in the employee's contract covering this situation, or the employee's consent is obtained, employers can't force an employee to take additional annual leave to cover their delayed return to work. That being said, when faced with an alternative option of unpaid leave, it's likely that many employees will be open to such a suggestion. If a decision is taken to go down this route, employers should make sure this is documented and that the relevant employee's annual leave records are updated.
3. Can a request to cancel annual leave be refused?
Some employees may decide to cut their losses and try to reschedule their holiday, rather than running the risk of being stranded abroad. If a request is made for pre-booked annual leave to be cancelled, employers should consider each situation individually, having regard to any relevant provisions in contracts of employment, and ensure that any refusals are reasonable in the circumstances. If a request to cancel leave is refused where there are no legitimate business reasons for doing so, employers could leave themselves open to complaints from employees. The key here is to make a considered and reasoned decision, and explain this clearly to affected employees.
4. Can employees who don't attend work because of travel disruption be disciplined?
Disciplinary action based solely on a failure to attend work because of unavoidable travel delays would likely be viewed as unreasonable action on the part of an employer. If the situation is outwith the employee's control, they should not, generally speaking, be held accountable through a disciplinary process. That being said, employees should take all reasonable steps to return to work and, importantly, ensure they are complying with any absence reporting procedures. Failure to do so could give rise to disciplinary action, which should be progressed in line with the employer's disciplinary policy.
5. What can employers do to keep difficulties to a minimum?
Employers should make sure that employees are clear on the procedures that must be followed in emergency situations where they cannot attend work. Communication is key: make sure that all staff contact details are up to date and establish regular contact with any employees stranded abroad. This will help employers to assess whether affected employees have any means of working from their current location, and to allocate any work appropriately.
Employers should also consider whether during any period of unexpected employee absence, additional cover might be needed. If so, procedures should be in place to set the wheels in motion quickly.
Depending on the nature of their business, employers may want to consider asking employees to continue to work from abroad. This option would involve the cooperation of the employees involved, and so the practicalities of this would need to be considered on a case by case basis, depending on the employee's ability to work remotely.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
